DH Deciphers | It's time for a relook at the Indus Water Treaty

The IWT granted India the absolute control over the 3 eastern rivers of the Indus River System – Beas, Ravi and Sutlej with an average annual flow of 33 Million Acre Feet (MAF)

The Indus Water Treaty, signed in 1960, has survived many flashpoints in the perpetual conflict between India and Pakistan, including the wars of 1965 and 1971 as well as the Kargil Conflict of 1999. India, however, recently served Pakistan a notice, seeking modifications in the treaty. Anirban Bhaumik of DH looks at the history of the treaty and explains why New Delhi is asking for changes in the treaty 62 years after it was signed.

What is the Indus River System?

The Indus originates near Mansarovar Lake in the western part of the Tibet Autonomous Region, currently under occupation of China. The trans-Himalayan river flows through India and Pakistan before emptying into the Arabian Sea. The Indus and its tributaries – the Jhelum, the Chenab, the Beas, the Sutjej and the Ravi – are together called the Indus River System.

Why and when was the Indus Water Treaty signed?

When the Partition in August 1947 carved out Pakistan from India, the boundary line between the two newly independent nations was drawn across the Indus River Basin. The farmers of Punjab province of Pakistan were completely dependent on two irrigation heads, one at Madhopur on the Ravi and the other at Ferozepur on the Sutlej – both in India. This resulted in a dispute and eventually both sides started negotiations, facilitated by the World Bank led by its then President Eugene R Black. After nine years of negotiations, Prime Minister Jawaharlal Nehru of India and President Ayub Khan of Pakistan signed the Indus Water Treaty (IWT) in Karachi on September 19, 1960.

What did the IWT lay out?

The IWT granted India the absolute control over the three “eastern rivers” of the Indus River System – Beas, Ravi and Sutlej – with an average annual flow of 33 Million Acre Feet (MAF). The control over the three “western rivers” – Indus, Chenab and Jhelum – with an average annual flow of 136 MAF was given to Pakistan. The treaty, however, also allowed India to construct run-of-the-river hydro-electric projects on western rivers as well as to build storage capacity of 3.6 MAF water – 1.25 for general storage, 1.6 MAF for generation of hydroelectricity and 0.75 MAF for flood control. India, however, has not yet built any storage on the western rivers so far and at present irrigates only 0.792 million acres of land, although the IWT allowed it to do so over an area of 1.34 million acres with water from western rivers. India at present uses about 94-95% of water of the eastern rivers, but remaining 5-6% unused water flows down to Pakistan.

The IWT created a Permanent Indus Commission, comprising two commissioners – one each from India and Pakistan. The commission is mandated to oversee the implementation of the agreement. It laid out distinct procedures to deal with “questions”, “differences” and “disputes”. A “question” would be resolved by the commission itself, while a Neutral Expert was to be appointed to settle a “difference”. A “dispute” was to be referred to the “Court of Arbitration” – an arbitral tribunal comprising seven members. The IWT assigns the World Bank, which is also a signatory of the treaty, the task of appointing a Neutral Expert or a Court of Arbitration, when requested by either or both of the parties.

How has the IWT been working so far?

Permanent Indus Commission (PIC) has been meeting regularly, with the latest meeting being held on May 30 and 31 last. After the September 2016 terror attack at Uri in Jammu and Kashmir, New Delhi had decided not to attend the meeting of the commission, but had reversed its decision by May 2017.

Why has India served a notice to Pakistan, seeking changes in the IWT?

Islamabad in 2015 requested the World Bank for appointment of a ‘Neutral Expert’ to examine its objections to technical design features of two hydroelectric projects of India – the 330 MW Kishenganga Hydroelectric Project and 850 MW Ratle Hydro Electric Projects. The Kishenganga HEP on the Jhelum was inaugurated in 2018. The Ratle HEP on Chenab is still under construction. Pakistan has unrestricted right to use the water of both the western rivers, while India has limited right. Islamabad, however, in 2016 unilaterally retracted the request and proposed that a Court of Arbitration should adjudicate on its objections. New Delhi on the other hand asked the World Bank to appoint a Neutral Expert to settle the differences. Since the IWT does not empower the World Bank to decide whether one procedure should take precedence over the other, it paused the process on December 12, 2016. But five-year-long efforts to work out a solution acceptable to both failed as Pakistan persistently refused to discuss its objections with India during regular meetings of the PIC. The World Bank finally acted on both the requests and in October 2022 appointed Michel Lino as the Neutral Expert and Sean Murphy as the Chairman of the Court of Arbitration.

New Delhi conveyed to Islamabad and the World Bank that initiation of the two simultaneous processes on the same questions and the potential of their inconsistent or contradictory outcomes would create an unprecedented and legally untenable situation, which would risk endangering IWT itself. India is of the view that such parallel consideration of the same issues is not covered under any provision of IWT. This is why India has issued notice to Pakistan, seeking modification of the IWT in accordance with the Article XII (3) of the treaty itself – for the first time after it was signed in 1960.

What will happen next with the IWT?

New Delhi made the move just ahead of the commencement of the arbitration process in The Hague to settle the dispute between the two nations over Pakistan’s objections over the technical designs of the Kishenganga and Ralte HEPs of India. The notification issued by India will provide Pakistan an opportunity to enter into intergovernmental negotiations within 90 days to rectify the breach of the IWT. This process would also update IWT to incorporate the lessons learned over the last 62 years.